MSHA Enforcement Trends: Most-Cited Standards of 2015 and Rules to Live By

By: Nicholas W. Scala

Mine operators can look to MSHA’s 2015 enforcement data to identify patterns in the most frequently cited safety and health violations, making it easier to avoid costly citations and possible long-term legal ramifications. Data on the top 20 cited MSHA standards are available for side-by-side comparison here, offering a better picture of the coming year’s trends.shutterstock_regulations

Some familiar patterns emerge from the data and mine operators should closely examine the top of the most cited list, including those for potential exposure to moving machine parts, housekeeping and machine guarding related regulations. Year after year, these are heavily cited standards because MSHA continues to press heavy enforcement to address them. At the same time, alleged violations related to these standards often carry more serious allegations regarding negligence on the part of operators. MSHA considers the operators “on notice” that these are serious and common workplace hazards.

Take, for example, a few of the most cited regulations for sand and gravel surfaces operations last year: moving machine part guarding, 56.14107(a), tops the list in that segment of industry with 1,738 alleged violations, or 9.48 percent of the total written for that type of operation. Exposure of electrical conductors, 56.12004, is second at 1,225 alleged violations, or 6.68 percent. Safety defect correction, 56.14100(b), ranks third on this list, with 842 alleged violations, or 4.59 percent.

It’s clear from the above sample of the overall data that MSHA continues to strongly emphasize areas that are historically heavily cited.

These examples are problematic for all types of mine operators, particularly as the citations are usually written as Significant & Substantial (S&S), the more serious category of alleged MSHA violation, which can lead to higher penalties and harsher long-term scrutiny of the cited operations. For independent contractors, this trend poses significant concern as well. Mine operators often pay particular attention to S&S citations received by an independent contractor when performing pre-qualification review in the contract process, and having S&S citations on record could adversely affect a contractor trying to secure new jobs.

Many of the frequently cited standards stemming the latest data are also part of MSHA-designated “Rules to Live By,” and alleged violations of these standards can lead MSHA to cite high-gravity, severity and negligence designations.

Assistant Secretary of MSHA, Joseph Main, has pushed for an increased emphasis of the standards included in “Rules to Live By,” as part of a multi-year, intensive investigation effort focused on metal and nonmetal mines. Along with other MSHA enforcement initiatives, this emphasis was launched because of the spike in metal and nonmetal fatalities starting in October 2013.

The agency’s “Rules to Live By” web page explains the initiative as an effort to reduce mine accidents and resulting injuries by focusing on three areas, each of which concentrates on numerous specific standards: fatality prevention; preventing catastrophic accidents; and preventing common mining deaths. Each category has its own set of standards and mining employers should pay close attention to all, where applicable.

MSHA describes the overall effort as a multi-pronged focus on standards that are frequently violated and cited, showing a strong pattern year-over-year. The “Rules to Live By” section states:

“Compliance with safety and health standards is the responsibility of mine operators. While MSHA supports education and outreach efforts to assist the mining industry in improving mine safety and health, MSHA is charged with ensuring consistent and strict compliance with safety and health standards, and expects operators to foster a culture of zero tolerance for violations in their operations, including violations by contractors.”

Operators should also be aware of MSHA’s “Rules to Live By” Calculator, which tracks a mine operator’s issuances received under standards included in “Rules to Live By” and compares the number received per inspection day to the national average for that industry sector. MSHA uses this data to qualify certain mines for increased enforcement or impact inspections, if they are over the national average for their sector in “Rules to Live By” violations.

MSHA also expects that the mine operator will monitor this new tool and take action to curb violations under “Rules to Live By,” before the issuances surpass the national average for the particular mines’ operations (such a surface, underground, coal or metal/nonmetal).

If MSHA believes that certain operators fail to address alleged hazards under “Rules to Live By,” or these commonly cited standards, they may be vulnerable to tougher enforcement actions under the Mine Act, sections 104(d), 104(g) or 107(a). These types of actions can lead to special investigations of companies’ agents of management, especially actions under section 104(d).

Mine operators should study the most frequently cited standards in their category and redouble efforts to ensure covered hazards are addressed, avoiding heavy-handed enforcement and attention by MSHA. Keeping up to date on MSHA enforcement trends and initiatives is vital in creating a safe workplace while also maintaining compliance. At the same time, operators should review any issuance received from MSHA under the “Rules to Live By,” or enforcement trends, to determine the validity of the issuance and if contest of the citation/order is proper. Widespread acceptance and accumulation of these types of violations can lead to heightened enforcement by MSHA at your mine.

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